#251 - A Secret Government Within, 17-Sep-1991

Government regulations used to be made through an open process.
Congress would pass a law saying something should be done; for example,
in the Clean Air Act, Congress said some toxic air pollutants should be
controlled. In response to the law, an agency (such as U.S.
Environmental Protection Agency [EPA]) published a proposed regulation.
Anyone who wanted to could send a comment. If the proposed regulation
would have large effects on the public, the agency might hold a series
of public hearings around the country. After the public comments were
all in, the agency mulled them over, reached a decision, and published
a final regulation.

That's how it used to work. Ronald Reagan began changing this process
almost immediately. Mr. Reagan had been in office less than a month
when he issued Executive Order 12291 which said no agency could issue
either proposed or final regulations without getting approval from the
Office of Management and Budget (OMB). OMB was required to apply "cost
benefit" analysis to proposed regulations--if the benefits didn't
exceed the costs, the regulations were chucked. In any case, only the
least-cost regulations could be adopted, even if other proposals would
provide greater benefits.

In January 1985, Mr. Reagan issued Executive Order 12498 saying
government agencies had to have OMB approval before even collecting
information, through a study or a survey, that might potentially lead
to regulation in the future. Where Executive Order 12291 allowed OMB to
hold up any regulatory process then under way, Executive Order 12498
allowed OMB to interfere in any regulatory process even before it got
started.

In this manner, the Executive Branch of government (the President and
his men) could prevent the legislative branch (the Congress) from
accomplishing much. Congress can say, "The law will be such and such"
but now OMB can say to any agency, "You cannot make a regulation we
don't like--no matter what Congress says." Congress of course has the
power to force an agency to pass a particular rule, but if Congress has
to pass a law creating every regulation that every agency is supposed
to make, Congress will be mired in details and will accomplish even
less than it does now.

In 1989 President Bush created the Council on Competitiveness and
appointed Vice-President J. Danforth Quayle to head it. The Council is
another way for the Executive to prevent unwanted regulations.

Under Mr. Quayle's keen eye, the Council has come to concern itself
with almost every controversial health, safety and environmental
regulation. For example, this summer the Quayle Council played a
critical role reversing the nation's wetlands protection policy,
opening an estimated 30 million acres of wetlands to destruction by
developers. In recent months the Council has been key in derailing
certain Clean Air Act regulations to control toxic emissions; in
preventing the adoption of strict rules to protect workers from cancer-
causing, formaldehyde; and in preventing operators of municipal solid
waste incinerators from having to recycle 25% of the garbage delivered
to their incinerator door.

Unlike OMB, which is somewhat accountable to the public, the Quayle
Council works almost entirely in secret. It is not possible even to
learn who works for the Council or who attends its meetings. Freedom of
Information Act requests for simple matters--such as the name,
background and education of Council staff members--have been denied on
the basis of "executive privilege." The deliberations of the Council
are not public, its budget is not public, and the Council ordinarily
publishes no rationale for any actions it takes. The rules by which the
Council operates are not available anywhere. This makes a court
challenge to any Council actions difficult or impossible.

Yet the Quayle Council has great authority. The Council can "pull" any
regulation being considered by any government agency and can pressure
the agency to change it. Since many cabinet officials sit on the
Council (though exactly which ones are members is not public
information), it has clout throughout the federal bureaucracy.

March 22, 1991, Vice-President Quayle issued a memo announcing the
Council's range of authority. The memo said the following items are
subject to regulatory review by the Council: "strategy statements,
guidelines, policy manuals, grant and loan procedures, Advanced Notices
of Proposed Rulemaking, press releases, and other documents announcing
or implementing regulatory policy that affects the public."

Last March a Congressional committee asked Mr. Quayle to send a Council
representative to a public hearing. Mr. Quayle not only declined to
send anyone, but his Council also refused to answer written questions
about the Council's membership and the rules that govern its actions.
"Apparently, the Council is not in any way constrained by the
guidelines that are supposed to govern the process of issuing
regulations," Congressman Henry Waxman concluded.

The Council's work is very persuasive. For example, EPA had proposed
that "fuel cleaning" be part of "best available control technology" for
municipal incinerators. Coal-burning power plants can offer "fuel
cleaning" (meaning chemical removal of sulfur) as an alternative to
expensive scrubbers to remove sulfur from smoke stack emissions. By
analogy, EPA was urging "fuel cleaning" as a way to reducing toxic
emissions from incinerators--they were trying to require incinerator
operators to recycle 25% of the garbage that arrive at the incinerator
door. The Quayle Council jumped on that idea with both feet, and the
idea promptly died.

The Quayle Council often pokes into issues that depend upon scientific
and medical expertise, but so far as any public records show, the
Council employs no scientists and no physicians. Take the matter of
wetlands protection. Wetlands are complex ecosystems that are often
highly productive (swamps, for example, are often teeming with life),
and are often essential in the chain of being. For example, frogs and
other amphibians need land that is wet sometimes and dry others, and
the loss of wetlands of contributing to the loss of amphibians
worldwide, fraying the web of life itself (see RHWN #246). President
Bush made a campaign pledge that there would be "no net loss of
wetlands" during his term of office. But in summer of 1991, pressure
from developers convinced Mr. Bush to change his policies, and the
Quayle Council swung into action to take care of the situation. For
several months, scientists within EPA argued for a particular
definition of a wetland, aiming to preserve the essential character of
wetlands for those creatures that depend upon them. EPA wanted to
define a wetland as any land that's got standing water on it seven days
a year. Mr. Quayle's Council wanted standing water 30 days a year as
the definition. In the end, Mr. Quayle made what must have seemed to
him a little joke: "How about if we say when it's wet, it's wet?" as a
possible definition for what constitutes a wetland--and EPA accepted a
definition (standing water 15 days a year and 21 days of surface
saturation a year) that will ultimately allow the destruction of some
30 million acres of wetlands. Three key EPA scientists resigned in
protest.

The new Clean Air Act has weak provisions controlling toxic air
emissions. The Quayle Council has tried to make them even weaker. The
Council has inserted language into EPA's proposed rules that would
allow polluters to re-write their own permits, giving themselves leeway
to dump additional toxins into the air. Under Council proposals, the
public would not have to be notified as companies re-wrote their own
permits, the EPA itself would not even be asked for comment, and
neighboring states would have no say. Under the proposed rule changes,
polluters re-writing their own permits would only have to notify their
state government, and state government would have seven days to file an
objection; otherwise the re-written permit would go into effect. David
Hawkins, senior attorney for Natural Resources Defense Council (NRDC)
says the Quayle Council's revisions "Would turn a program intended to
protect the people from pollution into a program designed to protect
polluters from the people."

EPA had proposed to prevent lead-acid automobile batteries from being
burned in municipal solid waste incinerators because lead is already a
major public health problem (see RHWN #213 and #214) poisoning children
in rural and urban areas alike. Municipal incinerators are the largest
source of lead emissions into the environment. However, the Quayle
Council snuffed EPA's proposal, so it's legal once again to incinerate
automobile batteries.

The Quayle Council keeps no public records of who it talks to for
advice, but Vice-President Quayle says he consults most often with
business leaders who can tell him better than economists "how the clock
is ticking." Allan Hubbard, executive director of the Quayle Council,
says, "When they feel like they are being treated unfairly, [industry
groups] come to us." The Council is clearly a secret government within
our government. It gets the President's dirty work done quietly,
forcefully and without any of those pesky trimmings of democracy.